Court File and Parties
CITATION: Moses v O’Donnell, 2016 ONSC 1373
COURT FILE NO.: FS-14-1176
DATE: February 24, 2016
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Beverly Moses, Applicant
AND
Barry Clifford O’Donnell, Respondent
BEFORE: The Honourable Mr. Justice Martin James
COUNSEL: Mary F.A. Shushack for the Applicant
Laurie A. Dakin for the Respondent
HEARD: Written Submissions
COSTS ENDORSEMENT
[1] This is the costs endorsement in relation to a motion brought by the applicant for retroactive and ongoing spousal support. The respondent brought a cross-claim requesting child support from the applicant and a share of the children’s extra-ordinary expenses.
[2] Neither party was completely successful. Both parties served written offers to settle that were not clearly superior to the results at the hearing. Also, their offers included proposals on issues that went beyond the matters raised by the motion and cross-motion.
[3] The applicant says she was successful on both the retroactive and ongoing spousal support claims although the amount awarded for retroactive spousal support was considerably less than the amount she requested.
[4] The respondent sought child support for both daughters. In the case of Bobbie-Rose the respondent sought both child support and a contribution to her university expenses. Success on this issue was divided but a significant portion of the respondent’s claim was disallowed. In the case of the party’s younger daughter, Beckie, again success was divided and a significant portion of the respondent’s claim for extra-ordinary expenses in relation to Beckie was disallowed.
[5] The applicant says that the respondent attended court on the day of the hearing with new information that had not been previously disclosed. It is true that late and last minute disclosures can put the other side at an unfair disadvantage.
[6] The applicant’s bill of costs discloses that her actual costs for the motion were about $10,500. This may be compared with the respondent’s actual costs of $4,500. The motion took a half day to complete.
[7] The determination of what amount of costs ought to be paid by one party to another involves more than an arithmetical exercise of totalling the time spent and multiplying the time spent by a lawyer’s hourly rate. While the general rule is that the losing party ought to be required to pay a contribution to the successful party’s legal expenses, an order requiring the payment of costs on a full indemnity basis is rare. Partial indemnity costs awards are the norm, not the exception.
[8] Also, it is relevant to consider what amount a losing party may reasonably have expected to pay towards the other side’s legal expenses.
[9] On balance, it appears to me that the applicant was sufficiently successful to warrant an entitlement to partial indemnity costs. Even after the respondent was credited with the applicant’s unpaid child support, the applicant obtained a sizeable award for retroactive spousal support together with ongoing spousal support in circumstances where no spousal support had been paid since separation. Bearing in mind that the motion took a half day to argue and two court appearances were required, I have determined that a reasonable amount would be $5,500 plus HST on a partial indemnity basis.
[10] Accordingly, the respondent is ordered to pay costs to the applicant fixed in the amount of $5,500 plus HST within 60 days.
The Honourable Mr. Justice James
Date: February 24, 2016
CITATION: Moses v O’Donnell, 2016 ONSC 1373
COURT FILE NO.: FS-14-1176
DATE: February 24, 2016
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Beverly Moses, Applicant
AND
Barry Clifford O’Donnell, Respondent
BEFORE: Honourable Mr. Justice Martin James
COUNSEL: Mary Shushack for the Applicant
Laurie Dakin for the Respondent
COSTS ENDORSEMENT
James, J.
Released: February 24, 2016